Matthew S. R. Palmer

"Open the Doors and Where are the People?: Constitutional Dialogue in the Shadow of the People"

Matthew S. R. Palmer — Sun, 05 Feb 2012 20:07:39 PST

The chapter applies an approach of ‘constitutional realism’ in addressing the question ‘where are the people?’ in New Zealand’s constitution. It outlines the reality of New Zealand’s constitution in terms of the dynamics of its constitutional dialogue and its underlying norms and culture. With that context, it examines the position of ‘the people’ in New Zealand’s constitution: how people in New Zealand can currently engage with and participate in governance. It concludes by noting that the most important manifestation of the people in New Zealand is through democratic representation in Parliament. It emphasises the under-appreciated importance of the New Zealand people in the constitutional dialogue that occurs between the political and judicial branches of government.

The Law Officers and Departmental Lawyers

Matthew S. R. Palmer — Tue, 29 Nov 2011 22:15:35 PST

This short article explains the constitutional relationship between the law officers of the Crown and departmental lawyers in New Zealand.

Book Review of Counter-Terrorism: The Culture of Law and Justice after 9/11

Matthew S. R. Palmer — Mon, 01 Aug 2011 01:21:51 PDT

This is a largely complimentary book review focussing on the theme of law and culture in the context of counter-terrorism law.

Constitutional Design and Law: The Political Economy of Cabinet and Congressional Government

Matthew S. R. Palmer — Sat, 11 Jun 2011 04:20:08 PDT

The dissertation takes a political economy approach to constitutional design and legislation in the Westminster (Cabinet) and US (Congressional) models of government. Part I develops the economics of comparative political organization by constructing a theoretical framework for analyzing constitutional design. Part II applies the framework to distinguish the essences of the Cabinet and Congressional systems of constitutional design in the contexts of US and Canadian federal government. Part III analyzes the effects of the different constitutional designs on the processes of legislating in each system and on the substantive characteristics of legislation in each system. The analysis is subjected to a qualitative reality check based on more than 100 personal interviews conducted in Ottawa and Washington DC between August 1991 and January 1992.

The theoretical framework draws an analogy between democratic government and an unregulated, consumer-owned natural monopoly with respect to coercion. The imperatives of constitutional design are to maximize the efficiency with which government produces coercion while ensuring that a government is sufficiently representative that it does not abuse its monopolistic power through discriminating between groups of individuals. Cabinet government is founded in organizational hierarchy, analogous to a franchise-bidding scheme for controlling a natural monopoly, whereas Congressional government is founded in spontaneous transactions between broken-up political institutions. A Cabinet system is relatively oriented to efficiency in producing coercion while a Congressional system is relatively oriented to representativeness in mitigating the abuse of coercion.

In general, the efficiency bias of the Cabinet system is associated with a more orderly and systematic process of formulating public policy, and drafting, passing, implementing and interpreting legislation than is a Congressional system. Legislation produced by a Cabinet system tends to be more consistent, coherent, clear, and less ambiguous, but also less specific than that produced by a Congressional system. It also tends to be based on less public dialogue, to be formulated more quickly, and to be less stable across administrations, but more stable during an administration, than in a Congressional system. These differences pose different challenges to adherence to the rule of law in each system.

The Contents of the Dissertation are (in two PDFs):

[PDF 1 - 19MB]

INTRODUCTION

1 Political Economy and Cabinet and Congressional Government

I A FRAMEWORK OF CONSTITUTIONAL DESIGN AND LAW

2 Government and Law: A Monopoly of Coercion

3 Democracy and Constitutional Design: Constraining the Monopoly

II THE CONSTITUTIONAL DESIGN OF CABINET AND CONGRESSIONAL GOVERNMENT

4 Cabinet and Congressional Government: Organization versus Transactions

5 The Constitutional Design of Cabinet Government

[PDF 2 - 19MB]

6 The Constitutional Design of Congressional Government

III LEGISLATION IN CABINET AND CONGRESSIONAL GOVERNMENT

7 The Process of Legislating

8 The Substance of Legislation

CONCLUSIONS

9 Political Economy and Constitutional Design

The Treaty of Waitangi in New Zealand's Law and Constitution, reviewed by Sir Edmund Thomas

Matthew S. R. Palmer — Mon, 07 Sep 2009 18:23:56 PDT

Sir Edmund Thomas, former judge of the New Zealand Court of Appeal and Supreme Court, reviews Matthew Palmer's book on the Treaty of Waitangi in the August 2009 issue of the New Zealand Law Journal

The Treaty of Waitangi in New Zealand's Law and Constitution

Matthew S. R. Palmer — Sun, 23 Nov 2008 00:19:39 PST

Part I of this book uses the approach of constitutional realism to examine the meaning of the Treaty of Waitangi, its legal status and force, and its constitutional place in 1840. In greater depth, Part II does the same thing for the current meaning, legal status and force, and constitutional place of the Treaty. Part III looks at where we might want the Treaty to be in the future.

This book suggests that the Treaty of Waitangi is best understood as representing an explicit commitment to the health of the relationships between the Crown, Maori, and other New Zealanders. Yet the specific meaning of the Treaty in relation to particular issues depends on context and therefore remains uncertain. This uncertainty is exacerbated by what I find to be the incoherent legal status and inconsistent legal force of the Treaty of Waitangi. Underlying this is the continuing contested and tense uncertainty of the constitutional roles of New Zealand's public institutions in relation to the Treaty of Waitangi today.

The key focus of the forward-looking part of the book is on how to achieve the objective of healthy relationships between the Crown, Maori and other New Zealanders. I conclude that, in order better to achieve this objective, change is desirable - change that stabilises the place of the Treaty of Waitangi in New Zealand's law and constitution. I suggest that the Treaty should be given legal force, as judged independently by a new Treaty of Waitangi Court.

Irrespective of whether such a suggestion finds favour, the primary aim of the book is to provoke and encourage a more constructive and coherent public discussion in New Zealand of what 'we' - the Crown, Maori and other New Zealanders - want, how we want to achieve it and how we want to decide on those questions.

The book can be ordered online from Victoria University Press using the link indicated.

New Zealand Constitutional Culture

Matthew S. R. Palmer — Wed, 12 Dec 2007 13:36:56 PST

This article takes seriously the relationship between culture and a constitution. It suggests that three aspects of New Zealand cultural attitudes to the exercise of public power are salient: egalitarianism, authoritarianism, and pragmatism. None of these attitudes support the constitutional norm of the rule of law and separation of powers in New Zealand, making that norm vulnerable. The salient New Zealand cultural attitudes to public power do reinforce the other three key norms of the New Zealand constitution: representative democracy; parliamentary sovereignty; and the unwritten and evolving nature of the constitution. The last of these is the most internationally distinctive aspect of New Zealand’s constitution and resonates with both our British constitutional heritage and the Māori notion of tikanga; our constitution is not a thing but a way of doing things.

Evidence to the Short Inquiry into Executive/Judiciary Relations

Matthew S. R. Palmer — Wed, 23 May 2007 07:01:03 PDT

On Wednesday 9 May 2007 I gave evidence to the House of Lords Constitution Committee on the nature of constitutional dialogue between branches of government and on New Zealand's experience with the organisation of the Ministry of Justice.

Human Rights and Social Policy in New Zealand

Claudia Geiringer et al. — Fri, 27 Apr 2007 02:08:55 PDT

This article aims to facilitate debate about the implications for New Zealand social policy making of taking a rights-based approach. It does so by exploring the sources and scope of New Zealand’s international human rights obligations, particularly in relation to economic, social and cultural rights. It identifies a range of constraints on social policy making deriving from these obligations and suggests that explicit and systematic attention to these constraints constitutes the essence of a rights-based approach to social policy making. Finally, the article comments on the adequacy of existing processes and structures of New Zealand government for giving effect to a rights-based approach and makes some suggestions for how these might be modified.

Bridled Power: New Zealand Government under MMP

Geoffrey Palmer et al. — Sat, 10 Mar 2007 15:49:06 PST

This book outlines how New Zealand's constitutiona and government works. This comprehensive revision of the previous edition of Unbridled Power takes into account the (then-forthcoming) effects of the reform of the electoral system.

The Economics of Law: the Sharebrokers Act 1908

Matthew S. R. Palmer — Sat, 10 Mar 2007 15:37:53 PST

This article uses a law and economics framework to analyze the regulation of sharebroking in New Zealand.

The State-Owned Enterprises Act 1986: Accountability?

Matthew S. R. Palmer — Sat, 10 Mar 2007 15:35:58 PST

This article examines the accountability framework of State-Owned Enterprises in New Zealand.

Privatization in Ukraine: Economics, Law, and Politics

Matthew S. R. Palmer — Sat, 10 Mar 2007 15:32:23 PST

This article examines the process of privatization in the context of the economic transformation of Ukraine. It demonstrates why Ukrainian economic self-determination is so important. Privatization would be inherently associated with massive and unpredictable social and economic in Ukraine. Because of the continuing democratization of Ukrainian politics, such consequences would fundamentally constrain the shape of Ukrainian reform that could be feasibly implemented. The process of democratization in Ukraine, as in the USSR itself, is crucially inter-related with economic reform. It is vital to understand the political, social, economic and legal context of Ukraine to determine the optimal shape of a programme of privatization. This article is designed to facilitate the process of Ukrainian economic self-determination.

The Conventional Wisdom of Ministerial Responsibility in New Zealand

Matthew S. R. Palmer — Sat, 10 Mar 2007 15:12:47 PST

This chapter outlines the operation of the doctrines of collective Cabinet responsibility and individual ministerial responsibility in New Zealand at the time of writing (under the first past the post electoral system).

Collective Cabinet Decision-Making in New Zealand

Matthew S. R. Palmer — Sat, 10 Mar 2007 15:09:08 PST

This chapter outlines the theory and reality of Cabinet Government in New Zealand at the time (under the First by the Post electoral system).

The International Practice

Matthew S. R. Palmer — Sat, 10 Mar 2007 15:03:37 PST

This chapter outlines how a "relationships" perspective of indigenous peoples and states, as offered in papers commissioned by the Ministry of Justice from Paul McHugh and Ken Coates, might be applied to the rights of indigenous peoples in the international sphere. The Coates and McHugh papers were published in the book, Living Relationships Kokiri Ngatahi: The Treaty of Waitangi in the New Millenium (Welliington: Victoria University Press, 1998).

International Law/Intercultural Relations

Matthew S. R. Palmer — Sat, 10 Mar 2007 14:51:17 PST

In this inaugural issue of a new journal about international law, I offer a perspective of the relationships of three liberal democratic states, the United States, Canada and New Zealand, with indigenous peoples. I argue that the dynamics in these relationships - and the norms that govern them - are similar to those between sovereign states. By extension, as the world becomes more complex, "international" law seems on its way to both losing its conventional identity (as rules that are primarily accessed through the keyhole of Westphalian nationhood), and acquiring a new, more universal character (as norms that govern interactions between individuals and groups on a global basis). International law is no longer either "international" or "law".

Toward an Economics of Comparative Political Organization: Examining Ministerial Responsibility

Matthew S. R. Palmer — Sat, 10 Mar 2007 14:22:39 PST

This article takes a step toward developing a general theoretical framework for analyzing comparative constitutional design. The Westminster system of constitutional design is characterized as analogous to a centralized hierarchical organization preserved intact but subjected to franchise bidding, whereas the U.S. constitutional system is viewed as a structure for mediating spontaneous transactions between broken-up institutions. The article uses this framework to analyze four functions of the Westminster doctrines of ministerial responsibility and compares them to their analogous elements (or lack thereof) in the U.S. constitution. Ministerial responsibility is presented as crucial to constituting the hierarchy of primary agency relationships of the Westminster constitution. The absence of analogous elements in the U.S. reflects the fundamentally different structure of agency relationships in that system of constitutional design.

Using Constitutional Realism to Identify the Complete Constitution: Lessons From an Unwritten Constitution

Matthew S. R. Palmer — Fri, 02 Mar 2007 03:14:33 PST

This article offers a way of more fully understanding the nature of the United States constitution. It advances a perspective of constitutional realism, drawing on the American legal realist tradition, that emphasizes the importance of identifying the reality of how public power is exercised. The resulting conception of a “complete constitution” extends to the structures, processes, principles, rules, conventions and even culture that constitute the generic ways in which public power is exercised. The article undertakes a comparative analysis of the reality of a paradigmatic real-world unwritten constitution – that of New Zealand. It then suggests how such an analysis can be undertaken in the United States. It calls for greater attention to be paid to identifying and analyzing the important elements of the “complete” U.S. constitution that do not exist in the text so-labelled, including those elements that may exist in beliefs and behaviour. Changes to these constitutional elements deserve levels of scrutiny and national dialogue that should be just as intense and considered as changes to the text of the Constitution. The current incomplete American conception of the U.S. Constitution means that may not occur.

Constitutional Realism about Constitutional Protection: Indigenous Rights under a Judicialized and a Politicized Constitution

Matthew S. R. Palmer — Sat, 24 Feb 2007 11:32:51 PST

This article assesses the comparative effectiveness of constitutional protection of indigenous rights in Canada and New Zealand using a perspective of “constitutional realism”. The two constitutions offer a useful contrast of similar systems distinguished by distinctly contrasting directions over the past 25 years. The reality of Canada’s constitutional development has seen more power accrue to the judicial branch of government. The reality of New Zealand’s constitutional development has seen more power accrue to the political branches of government. The article considers the reality of the behavior of these branches of government in each jurisdiction in relation to indigenous rights. It finds that the factual and cultural context in each of the two nations is crucial to assessing the constitutional implications of judicial versus political power. It suggests that judicial behaviour in both nations is influenced by politics and public opinion and calls for a more sophisticated unpacking of the modes of inter-branch dialogue that occurs “in the shadow of the people”.